Gujarat High Court
Sompura Arunkumar Prabhashankar vs Heirs Of Sompura Kumudben @ Kamuben ... on 1 September, 2022
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
C/SCA/11562/2018 ORDER DATED: 01/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11562 of 2018
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SOMPURA ARUNKUMAR PRABHASHANKAR
Versus
HEIRS OF SOMPURA KUMUDBEN @ KAMUBEN PITAMBAR
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Appearance:
MR SATYEN B RAWAL(1630) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
MS MEGHA JANI(1028) for the Respondent(s) No. 1.1,1.2,1.3,1.4
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 01/09/2022
ORAL ORDER
1. This petition, under Article 227 of the Constitution of India, is filed challenging the order passed below exhibit - 120, dated 09.03.2018, in Regular Civil Suit No.72 of 2000 by the Principal Civil Judge, Wadhwan, whereby the application filed by respondent Nos.1.1 to 1.4 - original plaintiffs, prayed for reopening of their right to lead evidence, came to be allowed.
2. Mother of respondent Nos.1.1 to 1.4 - Kumudben @ Kamuben Sompura, had filed a Regular Civil Suit No.72 of 2000 against the present petitioners - original defendant Nos.1 & 2 as also other trustee, praying for getting back the possession of Page 1 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 the rented premises under the provisions of the Gujarat Rents, Hotel and Lodging House Rates Control Act, 1947. Evidence of the original plaintiff by way of affidavit on oath, came to be filed on 15.06.2006 and the original plaintiff was cross-examined also. The evidence of the plaintiff came to be over on 14.10.2010. However, it appears that thereafter no other witnesses were examined by the plaintiff and a pursis vide exhibit - 50 dated 19.11.2010, the learned advocate declared that he does not wish to lead further evidence and he closes his right to lead evidence further. The said pursis came to be recorded by the learned Judge on that very day. However, on the next date of hearing being 06.01.2011, vide exhibit -51, the learned advocate for the plaintiff applied for an adjournment on the ground that the case is posted for further evidence on behalf of the plaintiff but since the plaintiff is sick and unable to come to the Court, an adjournment was sought for. The said application exhibit - 51 came to be rejected by the Court as evidence of the plaintiff was closed on a pursis filed on behalf of the plaintiff and therefore, adjournment on that ground was refused.
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C/SCA/11562/2018 ORDER DATED: 01/09/2022 2.1 Thereafter, case proceeded further and the evidence
on behalf of the defendants was also recorded on 26.08.2011. The witness on behalf of the defendants was also cross- examined by the learned advocate for the plaintiff. However, on 07.12.2012, learned advocate for the plaintiff requested the Court during the course of the cross-examination of the witness on behalf of the defendants to exhibit documents mark 3/6 and 3/7, which were xerox copies of the receipt, which was turned down by the Court but learned advocate requested that he would be able to get those original documents within a period of one week and if he fails to produce the same, he would proceed with the suit therefrom. However, the Trial Court granted the plaintiff a last opportunity to produce those documents on behalf of the plaintiff, with a view to determine the suit on merit, and posted the case on 21.12.2012. Again, on 21.12.2012, vide exhibit - 89, learned advocate for the plaintiff sought permission for production of the documents along with the list. However, learned advocate for the plaintiff sought for an adjournment for the purpose of hearing of that application but ultimately, as endorsed in that application exhibit - 89 on Page 3 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 13.02.2015, the said application for production of original documents along with list was not pressed on behalf of the plaintiff. The defendant in the suit vide pursis exhibit - 113 dated 17.11.2017, closed his evidence. However, again vide exhibit - 116, one of the plaintiffs i.e. heir of original plaintiff, filed an application for recalling of plaintiff's witness as also the permission to produce original documents mark 3/1 to 3/24. 2.2 The contents of the said application if referred, it appears that the original electricity bills as also receipts are said to have been issued by the defendants, were produced vide mark 3/1 to 3/24. However, since original documents could not be produced at the relevant time, on conclusion of evidence of the plaintiff when they got the original documents, they again sought for an opportunity to produce the same by leading further evidence. Surprisingly, again after the said application was fixed for hearing, vide endorsement dated 15.12.2017, the learned advocate for the plaintiff did not press the said application also. Even defendant No.3 in the suit vide application exhibit -118, declared that he does not wish to lead any evidence and he closes his evidence. However, vide Page 4 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 application exhibit -120, one of the plaintiffs on 11.01.2018, prayed for reopening of his right, which was closed, with a view to lead further evidence and requested that the documents be exhibited.
2.3 To the application exhibit -120, the defendants filed reply to the same vide exhibit -121 narrating the details about the frequent attempts made and opportunity granted to the plaintiff to produce and prove those documents and despite that he did not produce the same and therefore, defendants requested the Court not to allow the said application. However, in five line order, without assigning any reasons, the Trial Court has allowed the same and reopened the right of the plaintiff to lead evidence, which is under challenge by way of this petition.
3. Mr. Satyen Rawal, learned advocate for the petitioners submitted that the order impugned in this petition is unreasoned and not disclosing what weighed with the learned Judge, permitting to reopen the right to lead evidence which was closed on the own volition of plaintiff, not once but on several occasions. It is further submitted that even it cannot be Page 5 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 ascertained from the impugned order, what weighed with the court to allow the same. He has further submitted that when the case is posted for final arguments after parties have closed their evidence out of their own volition, such attempt to get right to lead evidence reopened, which is already over willingly, should not be permitted. He has further submitted that issues in this case came to be framed vide exhibit - 18 on 21.04.2004. 3.1 Drawing attention of the Court to examination-in- chief, exhibit -24 filed by the original plaintiff, even not a single document is referred in the said affidavit by the mark or from the list of documents claimed to have been produced and only xerox copies were referred and claimed to be produced through the said examination-in-chief. He has further submitted that only two documents, that receipt of rent and electricity bill, the xerox copies of which is said to have been referred and produced along with the affidavit of examination-in-chief and it was never requested to be even exhibited by production of the originals, prior to settling of the issue or even on the date of filing of examination-in-chief. He has further submitted that even after the xerox copy of the documents referred in the Page 6 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 examination-in-chief, no attempt is made on behalf of the plaintiff to produce the original thereof.
3.2 It is further submitted that on 15.06.2006, the said examination-in-chief on oath of the plaintiff came to be filed and she was cross-examined on 14.10.2010. After her cross- examination was over, vide exhibit -50 an application for closing evidence on behalf of the plaintiff came to be filed on 19.11.2010. Since then, according to submission of the learned advocate for the petitioners, no application to reopen the right to lead evidence or any attempt to produce the document, even if it presumed to be referred to in the examination-in-chief, is made by the original plaintiff or her advocate. Referring to the cross-examination of the witness of the defendant conducted by the advocate of the plaintiff, it is submitted that even two of the documents, being mark 3/6 and 3/7, which were xerox copy of the receipts which bears signature of the Hirabhai, were requested to be exhibited but in absence of the original thereof, the Court had granted the time to the learned advocate of the plaintiff to produce the same. However, the plaintiff sought permission to produce the original documents on 21.12.2012, Page 7 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 which was ultimately not pressed by the learned advocate on 13.2.2015. But fact remains that the witness on behalf of the defendant was cross-examined by the learned advocate for the plaintiff showing certain documents, like receipts of rent paid and certain electricity bills. All those bills and receipts, the witness pleaded ignorance about his knowledge and information to the same. In short, those receipts and electricity bills have been disowned by the witness on behalf of the defendant. He has further submitted that once repeated attempts either to produce original documents and / or lead evidence by reopening his right, was abandoned by not pressing the application on conclusion of trial and when case is posted for hearing of the arguments, no such application could have been filed and if filed, it could not have been entertained by the Court by such unreasoned order.
3.3 On the aforesaid such arguments, learned advocate for the petitioners - defendants submitted that this petition may be admitted and allowed.
4. As against that, Mr. Meet Pansuriya, learned advocate for Ms. Megha Jani, learned advocate for respondent Page 8 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 Nos.1.1 to 1.4 - heirs and legal representatives of original plaintiff submitted that not only the xerox copy of the documents were produced when plaint came to be filed through a separate list and referred into the deposition by the plaintiff herself, the originals thereof could not be produced only because they were not easily available at the relevant time and therefore, even if reopening of right to lead evidence is refused, at least the plaintiff should be permitted to produce the original documents of the xerox copies, which have been referred to and produced in the examination-in-chief by the original plaintiff. He has submitted that a party should not be deprived to file documents, even if there is some delay as it would amount to denial of justice. Therefore, he has requested that for production of original documents, plaintiff should be permitted, even by imposing cost rather to decline production thereof. He has further submitted that the rules of procedure are Hand- maid of justice. For the said proposition, he relies on a decision in the case of Levaku Pedda Reddamma & Ors. Versus Gottumukkala Venkata Subbamma & Anr. reported in 2022 LiveLaw (SC) 533. He has also relied on a decision in support Page 9 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 of his submission, of Delhi High Court in the case of Suresh Kumar Vs. Baldev Raj reported in AIR 1984 Delhi 439, for a proposition that a witness can be recalled at any stage of the proceedings before judgment is pronounced. Since in this case no judgment is yet pronounced, either the plaintiff be recalled by reopening the right to lead the evidence or the original documents which are now available, be permitted to produce with a view to do the substantial justice, even by imposing the cost on the plaintiff. Therefore, he has submitted that the impugned order is not required to be interfered with, that too, in a jurisdiction under Article 227 of the Constitution of India.
5. Having heard the learned advocates for the appearing parties as also going through the impugned order and the documents made available to the Court and annexed with the petition also, it is undisputed that voluntarily the original plaintiff as also the defendants have closed their evidence by tendering closing pursis after their evidence. Though along with plaint a list vide exhibit -3 appears to have been filed, no original documents by the plaintiff came to be produced at or before the settlement of the issue, as provided under Rule 1 of Page 10 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 Order XIII of the Civil Procedure Code, 1908. Though the provisions for effect of non production thereof came to be repealed, fact remains that the plaintiff was supposed to produce the original document and prove the same either by her own evidence or examining any other person on her behalf, if she is not the maker of the said documents. If her examination- in-chief on oath is seen, she has referred only two documents, one being rent receipt and other being electricity bills, that too, xerox copies without any particulars thereof, and not even referred to any documents by any mark number. If plaintiff relied on any document, which she is supposed to prove in her support, she has to refer the same or produce the original thereof in her deposition and prove the same either by her own evidence or by examining any other witness on her behalf. Mere production of original documents will not take place of proof, even if she is permitted at present to prove the same.
6. The original plaintiff i.e. Kumudben filed a suit, not for the protection of possession as tenant but for getting back the possession in her capacity as tenant. Therefore, it is submitted that possession of the suit premises, maybe claimed Page 11 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 in capacity of a tenant to be given back, was not with the plaintiff when suit came to be filed. At the same time, in her deposition when plaintiff herself was examined, she had not referred at all any single document to prove case from the list of documents, which were produced vide list exhibit -3. Only two of the documents, one receipt and electricity bills, passingly referred in her examination-in-chief without reference to the particulars of any document, which is produced vide any mark. Not only that, since xerox copy was there, it is surely not claimed to be exhibited at the time of examination-in-chief on oath or subsequent thereto. If xerox copies were available at the time of filing of the suit, at the time of deposition or even settlement of issue, it may never happen that those originals were not easily available to the original plaintiff. Over and above that, during the life time of the plaintiff, a closing pursis vide exhibit - 50 came to be filed on 14.11.2010, as cross- examination of the plaintiff got over on 14.10.2010. Thereafter, an application exhibit - 51 came to be filed by the advocate of the plaintiff on 06.01.2011 seeking adjournment on the ground that since plaintiff is sick and case is posted for her evidence, Page 12 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 which was contrary to closing pursis exhibit -50 as the learned advocate for the plaintiff declared that he does not wish to give further evidence and close the same, the said application came to be rejected. Despite that, while cross-examining the defendant, since the learned advocate for the plaintiff prayed for exhibiting two of the documents being mark 3/6 and 3/7, which were copy of receipts, which could not be exhibited, and therefore, he has assured the Court that if originals are not sent by the client to him, he will proceed with the case in absence thereof. However, the Court concerned has given one chance to the plaintiff while keeping pending the cross examination of the witness on behalf of the defendant for production of documents, as a last chance on 21.12.2012. On that very day, the learned advocate for the plaintiff, vide application exhibit - 89, requested the Court to permit to produce the original documents, which was adjourned at the request of the learned advocate for the plaintiff for production of a precedent in support of his claim. Surprisingly, at that time also, as recorded below that application exhibit - 89, on 13.02.2015, learned advocate for the plaintiff did not press the same. Page 13 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022
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7. Furthermore, not deterred by earlier withdrawal of production of original documents, vide an application exhibit - 116 by one of the heirs of the plaintiff on 14.12.2017 after the defendant filed closing pursis of his evidence, requested the Court to recall the witness, as mentioned in subject of that application, but ultimate prayer if read in that application, to lead further evidence for production of original documents, that too, mark 3/1 to 3/24, which was never referred into the deposition of the plaintiff herself when she was examined. Again, surprisingly after the said application was fixed for hearing on the next date thereof, learned advocate for the plaintiff did not press that very application.
8. In short, there were more than one attempts made either to produce original documents or to lead further evidence, having not pressed by the plaintiff, undeterred thereby, again an application exhibit -120 given by one of the heirs of the original plaintiff on 11.01.2018 to reopen his right to lead evidence, which was closed. The said application in itself is misconceived as right of plaintiff to lead evidence was never struck out but it was voluntarily closed by the plaintiff by a Page 14 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 pursis and subsequent attempts for production of the original documents and leading further evidence prayed for and then not pressed.
9. More surprisingly, the learned Judge by passing a cryptic five line order, without assigning any reason and considering all earlier attempts on behalf of the plaintiff, reopened the right to lead evidence to the plaintiff, which is under challenge. The respondents herein are the heirs of original plaintiff, who have nothing to do with the rented premises as suit itself is filed by their mother, not for protecting the possession but getting back the possession of the rented property. Considering the ample opportunity available to the plaintiff either for production of original documents and / or leading further evidence, either it is not pressed or abandoned and therefore, when both the sides have concluded their evidence and filed closing pursis of their evidence at the stage of hearing the argument, no such attempt on behalf of any party should have been entertained by the Court, that too, without any valid reasons. As such, there are no reasons assigned for the same and therefore, the impugned order is required to be Page 15 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022 C/SCA/11562/2018 ORDER DATED: 01/09/2022 quashed and set aside.
10. The argument that a valuable right to lead evidence and production of documents should be encouraged by imposing cost, is also not required to be entertained, more particularly, when there were several opportunities, seized of and wasted deliberately. Here, it is not a question of any rules of procedure to be followed but they were invoked by the plaintiff and wasted, as aforesaid, not once but several occasions. Again and again for the very same request by imposing cost also, it should not be permitted. Therefore, the precedent relied on by the learned advocate for the respondents - plaintiffs, as referred to hereinabove, are not of any help to him as it is not an honest attempt by the respondents, except to delay the proceedings, to request either production and / or reopening of right to lead evidence on behalf of the plaintiff. If it is permitted, it would amount to filling up lacuna on behalf of the plaintiff by their own attempts. It has not been utilized again and again and therefore, impugned order passed by the learned Judge, reopening right to lead evidence to the plaintiff by allowing application exhibit - 120, is hereby quashed and set aside.
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11. In view thereof, this petition is allowed to the aforesaid extent.
12. Since, Mr. Meet Pansuriya, learned advocate for the respondents - plaintiffs, prays for stay of the impugned order, the request is hereby refused as the impugned order came to be passed long back and suit very old awaiting arguments and judgment.
(UMESH A. TRIVEDI, J) Lalji Desai Page 17 of 17 Downloaded on : Mon Sep 05 21:02:31 IST 2022